UCD refuses to refund €1.6m paid ‘unlawfully’ to staff – The Irish Times – Thu, Jan 20, 2011

UCD IS refusing to refund €1.6 million paid in “unlawful” allowances to senior academic staff despite pressure from the Department of Education, the Department of Finance and the Higher Education Authority (HEA).

It is understood UCD president Dr Hugh Brady has warned the HEA that any attempt to impose a financial sanction on the university may be “illegal, inappropriate and discriminatory”.

A major standoff has now developed between the two sides, despite months of negotiations between the HEA and UCD vice-president Dr Philip Nolan on the issue.

The issue is not straightforward. For example, Prof Steve Hedley (UCC) has argued:

The issue of overpayments to university staff has yet to be resolved. The truth is that neither side is on very firm ground, and if ever the matter were to be litigated, it would almost certainly be necessary to look at each alleged over-payment separately. … The key provision is the Act, 1997, s 25(4), which reads in part:

… there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister [for Education and Skills] with the consent of the Minister for Finance.

There does not seem to be much dispute – so far at least – that the university staff in question have been paid rather more than is usually permitted. There are however a number of issues arising, which I group under five heads:

  1. Was there ministerial consent to the payments?
  2. If no, is there any way out of the conclusion that s 25(4) was breached?
  3. If no, were the payments ultra vires (i.e. beyond the legal powers of) the universities?
  4. If the payments were ultra vires, does it follow that individual payees have to refund them?
  5. Whether or not individuals have to re-pay, can the government make a deduction from future block grant payments to the universities?

These are in fact difficult issues, and is by no means clear that all five questions will receive the answers which the HEA assumes.

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